Volume 16, 2012

Vivien Deloges

Following the formal recognition of the human right to drinking water and sanitation by the United Nations (UN) General Assembly and Human Rights Council in 2010, one can wonder to what extent the normative content of the right to water is efficiently implemented in the European Union in accordance with the obligations of result laid down under arts 11 and 12 of the International Covenant on Economic. Social and Cultural Rights. Adopting a rights-based approach, this article considers the realisation of the quality, accessibility and affordability contents of the right to water in the EU legislation and its compliance with Member States' obligations under international and European human rights instruments, before examining the institutional endorsement of the right in the EU legal order.

Marc Clemson

Energy is essential to the social and economic development of the world. However, at the beginning of the second decade of the 21st century, over 20 per cent of the worldc population — 1.4 billion people — do not have access to electricity. The ever-increasing demand for energy provides an urgent signal for the human right to access energy to be addressed in international law. To date, the majority of literature regarding human rights and energy focuses on either the right to development or the eradication of poverty. This article documents the unabated growth in world energy consumption and the nexus between energy consumption, GDP and population growth. It then establishes whether the notion of a human right to energy, in particular access to electricity, is recognised by international law and places the human right to access energy in the context of other human rights. This is then followed by a review of whether such a right would be enforceable and consideration of the issues that may arise with regards to energy policy development. The article concludes that whilst the human right to access energy may well be accepted by many as a moral right, this notion has yet to be explicitly recognised by international law.

Rachel Kendall

The Pacific region is commonly marketed as a tropical island play-ground for a privileged percentage of society, advertised as a place where one can escape reality. However, once the resort islands’ facade is peeled back, a shocking scene is left, baring the remains of a simple existence that, for the people of this region, is largely inescapable. Already fraught with political instability and extreme poverty, this region is also one of the most vulnerable areas in the world, particularly susceptible to the devastating effects of climate change. The Intergovernmental Panel on Climate Change (IPCC) has estimated that sea levels will rise between 9 and 88 cm by the year 2100. This increase has the potential to cripple, if not destroy, whole Pacific Island states due to their low-lying geographical location. Traditionally, a threat to international peace and security has been considered to be directly related to militant warfare, encompassing the notion of protecting state borders from outside aggressive threats. However, this article illustrates how climate change is a security threat to the Pacific Islands, considering whether there is a role for the United Nations Security Council in the mitigation of climate change. The article concludes that to successfully mitigate climate change, the international community needs to adopt a multilayered approach, which may include invoking the powers of the United Nations Security Council.

Elizabeth Toomey

This article follows the path of public participation in resource management in New Zealand. It looks across the spectrum from the original Brundtland concept of sustainable development and the advent of the Resource Management Act 1991 to the passing of the Resource Management (Simplifying and Streamlining) Amendment Act 2009. For all of New Zealand except the Canterbury region. this 2009 Amendment Act determines the extent of public participation in any current resource management decision. From this stance, the article examines what broad philosophies should shape the future path for community engagement. Attention is then drawn to the Canterbury region and the overlay of emergency legislation. The necessity for an emergency response in the face of devastating earthquakes must inevitably result in a partial or complete suspension of public participation and consultation procedures that are likely to occur in a more ordered environment.

Benjamen F Gussens

This article advocates a Copernican shift that brings localism to the centre of any effective response to the current ecological crisis — and by doing so surrendering all other scales of social organisation (from the national to the global) to subsidiarity. Disembeddedness (or delocalisation) is identified as the root cause to ecological crises. Localism was the leitmotif of the historical (pre-Enlightenment) response. Today, however, the response marginalises localism through the fiction of "indigenous peoples", through the "universal human rights" paradigm, and above all through the illusion of the "complevity imperative". Notwithstanding there is a growing understanding of the importance of localism, shared by international organisations and the civil society. Unfortunately, this understanding is yet to be adopted by the New Zealand government.

Michelle van Kampen

Environmental protectionfor mineral-related activities in New Zealand is a hot topic. The oil spill in the Gulf of Mexico highlighted the potential environmental (and economic) effects of an offshore incident. A comparative review (commissioned by the Ministry of Economic Development) of the adequacy of New Zealand's health, safety and environmental legislation for offshore petroleum operations followed shortly thereafter, and highlighted the absence of a comprehensive environmental consenting regime for activities in New Zealand waters. Proposals for the removal of some areas of conservation land from sch 4 of the Crown Minerals Act 1991 in turn resulted in thousands of submissions in opposition and a protest march down Queen Street in Auckland. This article steps back from the emotion that is often associated with the debate around the appropriateness of mineral-related activities, and critically discusses the current statutory framework for such activities in New Zealand, including identifying the gaps and steps that may be (and are being) taken to address them.

Yangmay Downing

Hydraulic fracturing is a high-pressure drilling technique that fractures rocks underground to release gas or oil that was previously thought impractical to extract. Nonetheless, various environmental and public health concerns are associated with this technique — in particular, groundwater pollution. The aim of this article is to examine two questions. Firstly, whether the Resource Management Act 1991 and Crown Minerals Act 1991 provide adequate protection from the negative effects of hydraulic fracturing. Secondly, whether, if these do not provide adequate protection, other tortious causes of action could be applied. This issue is of contemporary importance due to the proliferation of this technique abroad as traditional sources of gas and oil become scarce. The current regulatory status relating to hydraulic fracturing may lead to suboptimal environmental protection. This article concludes that a moratorium followed by dedicated National Environmental Standards directed at hydraulic fracturing would be the most appropriate and effective solution.

Ezekiel Hudspith

Fresh water is a resource of considerable economic, cultural, rec-reational, and environmental significance. The management of freshwater resources in New Zealand is becoming an increasingly difficult task, confounded by the various and sometimes conflicting values and interests associated with water. The existing Resource Management Act regime for water has failed to cope with increasing constraints on the extractive and assimilative capacity of our water resources, and a reform programme is now well under way. The Government’s "New Start for Fresh Water" also marks a new emphasis on economic efficiency in determining how water is to be allocated and traded amongst users. While the outlines of this new regime are starting to become clear, there is still much to be decided. This article considers water management in New Zealand in terms of sustainable development principles, and in particular the dimensions coined as "Ecology, Equity, and (Economic) Efficiency". It also examines fresh water as having characteristics of a "common pool resource", and the challenges this presents for its management. Armed with these conceptual tools, the article goes on to consider the shortcomings of the existing water regime, the likely changes to come out of the "New Start" programme, and some of the important design choices that will need to be made along the way.

Julia Harker, Prue Taylor and Stephen Knight-Lenihan

The Land Transport Management Act 2003 aimed to shift land transport strategic planning and fundingfrom a narrow road development focus to providing for "an affordable, integrated, safe, responsive and sustainable land transport system". This article considers whether the Government Policy Statements (GPS) produced by successive governments since 2008 are in fact contributing to the land transport objective of environmental sustainability, as well as exploring whether the most recent GPS are susceptible to judicial review for failure to consider environmental sustainability as a mandatory relevant consideration. The article concludes that whether or not such an action could be brought, the current government has failed to provide for environmental sustainability in its GPS in any meaningful way, and posits a number of statutory amendments which could support ecologically sustainable outcomes in the land transport sector.